Whiteman v R

1. [1]

   BELL CJ: I agree with the orders proposed by Lonergan J for the reasons her Honour has given.

2. [2]

   PRICE J: I agree with the orders proposed by Lonergan J and her Honour’s reasons.

3. [3]

   LONERGAN J: The applicant, Dale Whiteman, seeks leave to appeal against the sentence imposed upon him following his plea of guilty to 38 sexual offences against 22 different children committed between 2004 and 2019.

4. [4]

   The sentence imposed in the District Court Wollongong by Haesler SC DCJ on 15 October 2021 was 16 years with a non-parole period of 12 years, comprising two aggregate sentences, one for the Commonwealth offences of 11 years with a non-parole period of 7 years and the other for the State offences of 10 years with a non-parole period of 6 years.

5. [5]

   The applicant appeals his sentence on three grounds:

   1. (1)

      His Honour erred in finding that the offending continued after the initial arrest of the applicant.

   2. (2)

      The sentence(s) imposed upon the applicant are manifestly excessive and different sentences are warranted at law.

   3. (3)

      The sentencing judge erred in failing to assess the objective criminality of counts.

6. [6]

   I consider that the Crown's concession in relation to ground 1 is properly made and is an error of the kind stated in House v R (1936) 55 CLR 499; [1936] HCA 40 (“House”) at [504] to [505] and so it will be necessary to proceed to resentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”). In those circumstances it is not necessary to deal with grounds 2 and 3 of the appeal, although the effect of my decision is that ground 2 would fail given the detailed findings and conclusions in the remarks on sentence that dealt comprehensively with the objective seriousness of each of the instances of the applicant’s pernicious and manipulative offending.

7. [7]

   Having considered the further material tendered on resentence, the agreed facts and the material before the sentencing judge, and accepting the fact that there is no evidence at all that there was any further offending after the applicant’s initial arrest on 11 December 2019, I have concluded that no lesser sentence is warranted and accordingly leave to appeal should be granted, but the appeal should be dismissed.

8. [8]

   By operation of s 578A(2) of the Crimes Act 1900 (Cth) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of the victims’ names or any other information that might identify them is prohibited. The sentencing judge noted that pseudonyms of “Child 1”, “Child 2” etc was his approach to ensuring that statutory protections were maintained and so I have adopted the same approach.

The facts of the offending

1. [9]

   The applicant’s modus operandi was to foster relationships with girls around 11 to 15 years of age whom he met through friends or community activities like rugby league and ballroom dancing. The relationships were largely pursued online, at least at first. The applicant would send the girls anodyne messages, generally about shared interests, and then he would steer the conversation in a sexual direction. Sometimes he requested that the girls send him photographs of themselves in their underwear. Sometimes they acceded to those requests.

2. [10]

   On eleven occasions, involving six of his victims, this grooming behaviour was successfully engineered to achieve an in-person meeting with his victim during which sexual acts occurred. The applicant's activities came to the attention of police in 2019, when the friends of one of the girls with whom he was engaged in online conversation, reported what was occurring to their school principal.

3. [11]

   The applicant was arrested for the first time on 11 December 2019. A search warrant was executed on the same date and a USB was seized. That USB was later analysed and child sexual abuse material was found on it, including of unknown children, as well as some of the victims of the other offences. This led to a further arrest on 4 March 2020. The applicant has remained in custody from that time.

4. [12]

   The agreed facts of the offending are summarised in the remarks on sentence and other than the issue forming the basis of ground 1 of the appeal, are not subject to challenge. Because of the range and extent of the offending, the 22 separate victims and the lengthy period over which the applicant engaged in this offending, the facts of the offending are lengthy. I have added into this summary the maximum penalty and any standard non-parole period referable to the offending.

5. [13]

   CHILD 1 - BORN 1991

6. [14]

   CHILD 2 - BORN 1991

7. [15]

   CHILD 3 - BORN 1993

8. [16]

   CHILD 16 - BORN 1994

9. [17]

   CHILD 19 - BORN 1992

10. [18]

    CHILD 4 - BORN 1994

11. [19]

    CHILD 5 - BORN 1992

12. [20]

    CHILD 10 - BORN 1999

13. [21]

    CHILD 6 - BORN 1998

14. [22]

    CHILD 11 - BORN 1998

15. [23]

    CHILD 12 - BORN 1999

16. [24]

    CHILD 13 - BORN 1999

17. [25]

    CHILD 14 - BORN 1996

18. [26]

    CHILD 20 - BORN 1998

19. [27]

    CHILD 17 - BORN 1998

20. [28]

    CHILD 18 - BORN 2004

21. [29]

    CHILD 7 - BORN 2003

22. [30]

    CHILD 8 - BORN 2003

23. [31]

    CHILD 21 - BORN 2003

24. [32]

    CHILD 9 - BORN 2005

25. [33]

    CHILD 22 - BORN 2003

26. [34]

    CHILD 10 - BORN 2006

Facts relating to the arrest and charging for the commonwealth offending

1. [35]

   A number of Child 10’s school friends became aware of these conversations and notified their Principal, who then contacted police. Police attended the school and obtained evidence of the conversation between the applicant and Child 10.

2. [36]

   On 11 December 2019, police executed a search warrant at the applicant’s residence. There, police cautioned him and placed him under arrest. Police seized his mobile phone which also contained evidence of the messages with Child 10 and three images of her wearing a bra. Police also seized a USB storage device which was later analysed. He was taken to Wollongong Police Station where he agreed to participate in an electronically recorded interview, where he made both admissions and exculpatory comments. He was charged with offences relating to Child 10 and later granted bail.

3. [37]

   On 26 February 2020, police examined items seized from the search warrant executed on the 11 December 2019, including a USB storage device inserted into the applicant’s laptop. It had a folder labelled 'Work Pics', inside this folder there were seventy-five (75) other folders. One folder labelled, ‘Randoms’ contained a number of images of naked juveniles. 11 images were deemed to be Child Abuse Material. Three images were identified as Category One on the Interpol Baseline. Eight images were identified as Category Two on the Interpol Baseline. All eleven images were of unidentified children.

4. [38]

   Seventy-one (71) folders were labelled with individual female names representing a different female and each folder contained different images. A majority of the folders contained screen shots from social media accounts of the female labelled on the folder. However, a vast number of these folders additionally contained screen shots of conversation threads between the applicant and females which were of a sexual nature, inclusive with some images of a sexual nature such as images in underwear, naked photographs and sexual videos. One folder contained images of Child 4. A second related to the original charge from 11 December 2019 about Child 10.

5. [39]

   On 4 March 2020, the applicant was again arrested and taken to Wollongong Police Station. He agreed to participate in an electronically recorded interview where he made admissions relating to possession of the images found but denied having 'sexual relations' with any girls who were 14 or 15 and denied having 'sex' with any of the girls in the folders who were under the age of 16. He did say he had a ‘fetish’ for 'G-String bikini' and ‘swimwear’. The applicant was charged and has been held on remand solely referable to these matters since that date.

The remarks on sentence

1. [40]

   Having outlined the offending, his Honour proceeded to deal comprehensively with objective seriousness, commencing with a discussion of general principles, and then discussing separately the criteria relevant to the evaluation of the seriousness of both the physical offences and the sexual communications offences. He noted the criteria for the physical offences to be: the act or acts done, the character of the sexual assaults by reference to the elements of the particular offence charged, the degree and nature of physical contact, the nature and extent of any penetration of the child, the degree of physical harm done to the child (psychological harm of some sort being presumed), the time at which the acts occurred, where and how the offence came about, the other acts associated with the crime, the age difference between the perpetrator and the child, any relationship between the perpetrator and the child and the age of the child relative to the range encompassed by the offence.

2. [41]

   His Honour then proceeded to deal with the Commonwealth offences, first setting out general principles and the recognised harm done, and the authorities that stress the need for general deterrence to be given primacy in sentencing for this type of offending.

3. [42]

   His Honour referred to eight factors relevant to the assessment of the objective seriousness: first, the nature of the conduct, including the topics raised and the methods used to gain the child’s trust and any abuse of that trust, second, the extent of any manipulation of the child, third the nature of demands made and the extent the child became compliant with requests, fourth, the number of contacts - from the occasional contact to a bombardment of indecent suggestions, fifth, whether graphic intimate or sexual images were sent to the child, sixth, whether images were solicited from the child, seventh, whether images solicited were sent by the child and eighth, whether the communications were accompanied by acts such as gifts or money.

4. [43]

   Under the heading “Assessment of objective seriousness - Specific offences” his Honour explained how he applied the principles to each of the individual matters for sentence. He highlighted that in relation to each child, the applicant had acted with the motive of his own sexual gratification and exploited the youth and inexperience of the children, and, in many cases, the significant age difference between himself and the victim.

5. [44]

   His Honour dealt with each child and the sequences of offending relating to them, identifying relevantly and appropriately, the specific acts that comprised the offence, providing a succinct reference to the particular aspects of those acts that underpinned their objective seriousness.

6. [45]

   His Honour noted that it was accepted that for each matter for sentence, a custodial sentence must be imposed.

7. [46]

   Rather than using an uninformative analysis such as “serious” or “very serious” or “not so serious”, his Honour went to the trouble of identifying the specific acts done and the way they reflect the criteria identified so that their seriousness was illustrated with clarity:

8. [47]

   His Honour then explained the role of the Form 1 and Schedule offences which needed to be taken into account in respect of offending when determining the appropriate penalty for the offence to which they relate and that on occasion they would not increase a sentence to any discernible extent because the facts in relation to them have already been taken into account in aggravation of the penalty for the matters to which they relate, but on other occasions, the increase can be substantial.

9. [48]

   His Honour referred to the victim impact statements that had been received, noting that they were in keeping with his expectations based on recent psychological research and the common experience of the Courts. Many of the victims told police how initially they welcomed the approaches by an older man, but that they found it uncomfortable and confusing when the approaches turned into sexual demands and they felt vulnerable and exploited and felt anxiety, shame and negative self-image.

10. [49]

    There was then reference to the need for particular care when sentencing for multiple offences where they involve discrete offending against multiple victims or multiple offences with overlapping elements of criminality and the need to bear in mind totality. In this context his Honour referred to relevant principles, including the need to avoid imposing a crushing sentence, the need for the sentencing to be transparent, the need for the sentence to be fair, just and proportionate for the whole offending, the impact of COVID-19 difficulties in custody and the applicant’s youth, noting that some of the offending occurred before he was an adult.

11. [50]

    His Honour dealt with the applicant’s subjective case noting that the applicant was born in 1988 and had a good and stable upbringing, with supportive parents. He had a sporting background and stable employment as a labourer since he was 20.

12. [51]

    He had been in three long-term relationships and had a number of casual sexual encounters with same aged women. He reported no issues with drugs or alcohol and they played no part in his offending. He reported a history consistent with the onset of depressive symptoms from mid-adolescence, with fleeting suicidal ideation. He has been seeing a psychologist in custody and has been prescribed an anti-depressant for anxiety and sleeping difficulties.

13. [52]

    Until his arrest, the applicant had no similar criminal convictions, a matter that the sentencing judge noted must be taken into account in his favour and the applicant’s apparent good character did not enable this offending but, as is obvious, he has not been of good character since he first began this offending as a teenager.

14. [53]

    His Honour accepted that there has been “some remorse” displayed, referring to the acceptance of responsibility by the guilty pleas but concluded that “… the applicant’s evidence was overall unconvincing. His offending was age specific. It was planned and calculated. As was his evidence to me”.

15. [54]

    Against that comprehensively articulated background, his Honour set out the following indicative sentences for the Commonwealth offences:

16. [55]

    His Honour set out the following indicative sentences for the state offences:

17. [56]

    His Honour arrived at aggregate sentences of 11 years with a non-parole period of 7 years for the Commonwealth offending and 10 years with a non-parole period of 6 years for the State offending, imposing a total effective aggregate sentence for all of the offending of 16 years with a non-parole period of 12 years, the sentence to commence from the time the applicant was taken into custody on 4 March 2020.

This appeal and resentence

1. [57]

   Given that the error identified in ground 1 is conceded, and is in the nature of House error, it remains for this Court to resentence the applicant.

2. [58]

   The applicant’s plea of guilty to the offending was entered at an early stage and he is entitled to a 25% discount.

3. [59]

   Other than the error identified in ground 1 of the appeal, there was nothing identified in the applicant’s written or oral submissions to suggest that there was any error of fact in his Honour’s findings or that his Honour was not entitled to draw the conclusions he did having assessed the applicant give evidence.

4. [60]

   Counsel for the applicant Ms Kluss submitted that Ms North’s report provided an underlying explanation for the offending in identifying depression and anxiety. Ms Kluss submitted that there was no violence in the offending, the applicant has no drug or alcohol issues and he has a supportive and stable background. He has expressed remorse and is prepared to engage in offence-specific treatment. There were muted submissions suggesting his Honour’s reasoning as to why he thought the applicant’s expressions of remorse were questionable was not entirely clear, but it was acknowledged that it is up to this Court to form its own view on resentence. Ms Kluss submitted that there are positive factors, including the guilty pleas, that “all boded for a lesser overall sentence and a departure from the statutory ratio in the overall effective sentence”.

5. [61]

   Ms Kluss submitted more generally that the majority of the offences involved no physical contact, no complaint was made about them by the victims, the carriage service offending involved “relatively low scale” images that were voluntarily provided, and that all physical contact was “consensual”.

6. [62]

   The Crown submitted that the carriage service offences were serious matters, demonstrated by the serious penalties assigned to them. Attention was drawn to the victim impact statements in respect of those offences and the effect of the applicant’s abuse of trust and associated manipulations upon those victims.

7. [63]

   The Crown submitted that the overall criminality was high. There were twenty-two victims over fifteen years with only seven of the offences being committed when the applicant was a juvenile. The offences were premeditated, predatory, manipulative and persistent in the face of resistance or reluctance of the victims. The offences were clearly associated with a diagnosed deviant sexual interest. The applicant demonstrated in his evidence an inability to acknowledge that his offending was age-specific, and this is problematic in terms of both his insight and his probity, given what he had told Dr North shortly before he gave evidence about what he recognised about his own actions – “living a double life” and “knowing it was wrong”.

8. [64]

   The Crown submitted that there was little in the applicant’s subjective case that was capable of mitigating the sentences to be imposed. Whilst he had no significant criminal history, the offences were committed over a protracted period of time, and he was assessed by Ms North as having an above average risk of re-offending. The sentences imposed must reflect a significant element of general deterrence: R v Gavel [2014] NSWCCA 46, and this is particularly so for the carriage service offences having regard to the difficulty in detecting this type of offence.

9. [65]

   I am not persuaded by the submissions made on behalf of the applicant.

10. [66]

    First, describing the physical contact offences as “consensual” is not accurate. In sequence 17, the applicant grabbed the victim’s hand and placed it on his penis despite her saying “no”, and in sequence 55, the applicant put his hand into the victim’s underwear despite her saying “no”.

11. [67]

    Secondly, this submission underplays the scheming and lies engaged in by the applicant to secure compliance. Sequences 60, 2, 4 and 5 involved manipulation of a social situation to make the victim feel special with the attentions of an older male, and so smoothing the way for access to her for sexual intercourse on three occasions, including on one occasion, in her own home where he was present as a guest of the family. When, in sequence 80 the applicant, (aged 30), asked to meet Child 8, she initially declined but he told her that he was “feeling suicidal and depressed”, had recently ended a relationship with his girlfriend and had a friend who had recently suicided and so Child 8 agreed to meet him to “talk”. That meeting led to sexual assault, and a few weeks later, sexual intercourse. In the carriage service offending in respect of two of his victims, the applicant created fake female identities, “Emma” and “Hailey”, who were purportedly modelling agents, thus obtaining compliance from the victims to send scantily clad photos of themselves which he kept. In respect of sequence 89, the applicant used the victim’s mother as a conduit for the requests for photos by providing “Hailey’s” phone number to the mother to ensure the cooperation and compliance of the child.

12. [68]

    Further, as explained by Basten JA in R v Nelson [2016] NSWCCA 130 (“Nelson”) at [17] to [25], describing sexual offending against children as “consensual” is an approach that tends to lead to error in principle.

13. [69]

    Nelson was a successful Crown sentence appeal where there had been a misinterpretation by the sentencing judge of the decision of this Court in DBW v R [2007] NSWCCA 236 at [38] to the effect that whilst the courts are entitled to act on the basis that child sexual assault cases cause substantial psychological harm, no material had been put before the sentencing judge to suggest there had in fact been any substantial psychological or physical harm.

14. [70]

    As pointed out by Basten JA, there were errors in that approach:

15. [71]

    Whilst clearly not required to prove the harm done, and whilst these victim impact statements cannot be read as aggravating the offending for which the applicant was sentenced and is to be resentenced, the victim impact statements read to the sentencing court in this case acutely demonstrate the personal carnage caused by this kind of offending and its ongoing effects, including on the victim’s family. A common theme stated was the feeling of shame, and that if the victim had called the applicant out for his actions, perhaps it would have stopped him from abusing others. The sense of betrayal was another theme, with one victim stating that “she cannot explain the depths of despair that her parents feel” because they had welcomed the applicant into their home. All spoke of a loss of trust, feeling angry and closed off, depressed and anxious.

16. [72]

    The offending by the applicant involved a very high degree of criminality. The offences were cynically planned and calculated. It is understandable that the sentencing judge concluded on the issue of remorse that the applicant’s evidence to the Court and his letter of apology were insincere and self-serving and should be viewed with some circumspection. It is a view that I also hold for the following reasons.

17. [73]

    The applicant provided a history to psychologist Ms North on 2 August 2021 that he derived sexual gratification from the offences and had felt sexual arousal towards these young females, stating that he “knew what he was doing was wrong” and that it “led him to feel like he was leading a double life”. However, when he was cross-examined about this subject matter only seven weeks later at the sentencing hearing on 23 September 2021, he flatly denied that he had been sexually attracted to his victims:

18. [74]

    The applicant’s letter to the Court and his oral evidence was self-focused and his expressions of regret for “any” damage he caused to the victims were immature and glib, showing little insight and no true remorse. The tone is oddly reluctant to acknowledge the reality of the damage done: “I am so very sorry to you all for any pain, stress or emotional damage my actions have caused”, and “I am deeply regretful and remorseful for hurting any of you in any way…”. The use of the word “any” in this context is telling. Rather than acknowledging as a fact the pain and damage he caused to his victims, there is a dismissive tone in the use of the word “any”. This was followed in the letter by various declarations about himself, how he is “completely changed”, “extremely confident (he) will never reoffend”, and how he has “found value and self-worth as well as hope and promise for the future ahead”. In a remarkably insightless signoff, he wrote “Lastly, I once again extend my apologies to each of the victims, and I wish you all happiness, along with bright and prosperous futures”.

19. [75]

    In his letter the applicant also spoke of jail having “saved his life”. He was invited by his counsel to explain what he meant by that. The answer proffered comprised a type of excuse for his offending behaviour, to the effect that he was “never happy in his own life” and was “in situations where he was feeling self-doubt and low self-esteem and suicidal thoughts”.

20. [76]

    The rest of the applicant’s oral evidence was focused on how he feels about his experience in custody, its upsetting effect on his family and that he is hoping his time in custody “builds foundations for him to use for the rest of his life”. In the context of being asked questions about his obligations under parole to engage in sex offender treatment, the applicant stated that he would be happy to engage in treatment programs as “I want to attend those to make sure that my future is brighter”. There was no acknowledgment, inferential or otherwise, of his need to participate in treatment programs to rehabilitate himself from his sexual interest in and offending against children.

21. [77]

    He was cross-examined about the way he obtained his victims’ trust:

22. [78]

    It was in this context that he then gave the answer denying that he was attracted to the children he offended against because of their age, which was contrary to what he had acknowledged to be the true situation to Ms North.

23. [79]

    I have had regard to the report of Ms North. She noted the applicant’s underlying symptoms of depression and related feelings of loneliness and perceived rejection that she thought had contributed to his sexual offending. Ms North noted, however, that given the ages of his victims and the duration of his offending, this indicated the presence of deviant sexual interests, as did the contact offences towards six of his victims. Ms North concluded that the applicant had an above average risk for sexual offending. Ms North also concluded that he accepted responsibility for his behaviour, (at least, to her), and had expressed regret and presented as motivated towards engaging in offence specific treatment.

24. [80]

    An affidavit by the applicant affirmed 30 August 2022 was read on resentence. The applicant refers repeatedly to his perception that there have been inadequate “courses” offered to him. He described his experience in protective custody and criticised his accommodation. He gave a description of the effects on him and his family of COVID-19 related lockdowns. He repeated his willingness to undertake the “courses required of me”, again with no acknowledgment of what those courses would be directed to and why. I have taken all of this material into account.

25. [81]

    This affidavit, the applicant’s evidence given on sentence and the assertions set out in his letter to the sentencing court in my view establishes that any “regret” the applicant feels is not true remorse for the damage he has caused to his victims, but regret for the circumstances in which he finds himself as a consequence. His oral evidence demonstrated starkly a failure to acknowledge the real basis of his offending which is that he was sexually attracted to female children of about 12 to 15 years of age and acted on that attraction to their damage, distress and detriment. His answers betray a personal view that he is in custody despite “not being a person like that”. There is a lack of insight into his diagnosed paedophilic interest, or worse still, insight but a deliberate lack of preparedness to acknowledge it, and so there is in my view a high risk of reoffending.

26. [82]

    I have concluded that his prospects of rehabilitation are quite poor given his prevarication and lack of honesty about his sexual interest in children.

27. [83]

    In my opinion, had the offending not been drawn to the attention of the authorities, the applicant would have continued accessing vulnerable children and offending in the manner demonstrated by his persistent repeated opportunistic and pernicious conduct over the 15 years preceding his arrest.

28. [84]

    The applicant expended substantial effort, thought and planning on how best to gain the trust of his victims. His offending did not abate and was in fact escalating. In 2018, as a 30 year old man, by way of offending in breach of the Criminal Code, he groomed Child 8, (then 15 years old), and secured her attendance where he then engaged in sexual offending against her. This offending commenced with sequence 83, using carriage service to groom, followed by sequence 85, using carriage service to engage in sexual activity, which was soon followed by aggravated indecent assault, a few weeks later, three offences of sexual intercourse, and a few weeks after that, three more offences of sexual intercourse. This is a chilling and concerning illustration of the actions of a manipulative and determined offender, starting with electronic access to and grooming of a vulnerable child, followed by further manipulation and emotional coercion into physical sexual offending against that child. This offending involved appalling manipulation on his part, claiming to her that he felt “depressed” and “suicidal”, and that she could “make him feel better”. This manipulation, in the context of him being 30 years old at the time and her being a 15 year old child, is sinister, callous and disgraceful.

29. [85]

    Whilst all the applicant’s offending against all of his twenty-two victims is serious, I consider this offending to be particularly serious and would have specified for those offences, (taking into account the associated Form 1 offences), significantly longer indicative sentences than those indicated by the sentencing judge. I would also have structured the sentence to result in a longer non-parole period and longer head sentence for the State offending, resulting in the imposition of a longer overall aggregate sentence of imprisonment.

30. [86]

    Accordingly, in the independent exercise of the sentencing discretion, I am not satisfied that a lesser sentence is warranted in law, (Kentwell at [44]) and so the appeal should be dismissed.

Orders

1. [87]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.